The Department admitted most of this mismanagement before the first trial in Cobell, conceding that it "does not adequately control the receipts and disbursements of all [trust] account holders," that it "does not provide all account holders with periodic statements of their account performance," that it "does not provide adequate staffing, supervision, and training for all aspects of trust fund management and accounting," and, in the words of then-Interior Secretary Bruce Babbitt, that "the fiduciary obligation of the United States government is not being fulfilled." Paul Homan, Clinton-appointed Special Trustee for the Indian trust, testified that "[t]he record-keeping system [for the Indian trust] is the worst that I have seen in my entire life."

Unsurprisingly given their treatment by the government, of which the trust debacle is illustrative, Native Americans' economic circumstances generally are appalling: Data the 2012 census show that their median household income was $35,310 (compared to the overall national median of $51,371), 29.1% were living in poverty (more than any other racial group, and at a rate significantly higher than the 15.9% national rate), and 27.4 percent lacked health insurance (compared to 14.8 percent nationally).

It is against this background that we should consider the government's approach to defending the Cobell lawsuit. The system was broken. Everyone knew it. Even the Interior Department admitted it. But the litigation process was notoriously long and convoluted--14 years and nearly 4000 docket entries by the end. Given the enormous scope and variety of the proceedings, I will only describe a few exemplary bits that are suggestive of the government's general strategy. I do not intend to refute Glenn's suggestion that there were reasons for the government to be frustrated; my point is that there were plenty of reasons for everyone involved--including the plaintiffs and the judge--to be frustrated.

One could characterize the government's litigation strategy charitably as thoughtful, exhaustive and deliberate, or uncharitably as dilatory and obstructionist. Beginning with its initial motion to dismiss and continuing through the first Cobell trial (which was held in June 1999 and established the government's trust management failings), the government pursued legal theories that would have completely cut off the Indians' private rights of action for trust violations. They argued that despite all the problems with its management of the trust, the Interior Department's internal trust reform efforts were proceeding "in a reasonable fashion, [at] a reasonable speed," and that the plaintiffs had no judicial remedy because of sovereign immunity and because Interior had unreviewable discretion to make trust management decisions. After the trial, Judge Lamberth ordered an accounting and the government advanced its sovereign immunity and agency discretion arguments on appeal. The D.C. Circuit rejected them and held that "[t]he federal government has substantial trust responsibilities toward Native Americans," and that it was "equally clear [that it] . . . has failed time and again to discharge its fiduciary duties."